The Significance of Obama's Decision to Release the Torture Memos

Numerous commentators are objecting to the idea that Barack Obama
deserves credit for his release of the OLC torture memos yesterday in
light of his accompanying pledge that CIA officials relying in good
faith on those memos won't be prosecuted. Chris Floyd is one who articulates that objection quite well and, as is always true for Chris, his criticisms are well worth reading. Many others -- including Keith Olbermann, Jonathan Turley, John Dean and Bruce Fein
-- yesterday lambasted Obama for his anti-prosecution stance. Since
I gave substantial credit to Obama yesterday for the release of the
memos and believe even more so today that he deserves it (despite
finding the anti-prosecution case as corrupted and morally bankrupt as
ever), I want to return to the issue of Obama's actions.

Purely
as an analytical matter, releasing the OLC memos and advocating against
prosecutions are two separate acts. It's perfectly coherent to praise
one and condemn the other. There is an unhealthy tendency to want to
make categorical, absolute judgments about the persona
of politicians generally and Obama especially ("I like him"/"I don't
like him"; "I trust him/I don't trust him") rather than case-by-case
judgments about his specific acts. "Like" and "trust" are sentiments
appropriate for one's friends and loved ones, not political leaders. A
politician who does something horrible yesterday can do something
praiseworthy tomorrow. Generally bad people can do good things (even
if for ignoble reasons) and generally good people can do bad things.
That's why I care little about motives, which I think, in any event,
are impossible to know. Regardless of motives, good acts (releasing
the torture memos) should be praised, and bad acts (arguing against
prosecutions) should be condemned.

Beyond those generalities,
I think the significance of Obama's decision to release those memos --
and the political courage it took -- shouldn't be minimized. There is
no question that many key factions in the "intelligence community" were
vehemently opposed to release of those memos. I have no doubt that reports that they waged a "war" to prevent release of these memos were absolutely true. The disgusting comments of former CIA Director Mike Hayden on MSNBC yesterday
-- where he made clear that he simply does not believe in the right of
citizens to know what their government does and that government crimes
should be kept hidden-- is clearly what Obama was hearing from many
powerful circles. That twisted anti-democratic mentality is the one
that predominates in our political class.

In the United States,
what Obama did yesterday is simply not done. American Presidents do
not disseminate to the world documents which narrate in vivid,
elaborate detail the dirty, illegal deeds done by the CIA, especially not when the actions are very recent, were approved and ordered
by the President of the United States, and the CIA is aggressively
demanding that the documents remain concealed and claiming that their
release will harm national security. When is the last time a President
did that?

Other than mildly placating growing anger over his betrayals of his civil liberties commitments (which, by the way, is proof of the need to criticize Obama when he does the wrong thing),
there wasn't much political gain for Obama in releasing these
documents. And he certainly knew that, by doing so, he would be
subjected to an onslaught of accusations that he was helping Al Qaeda
and endangering American National Security. And that's exactly what
happened, as in this cliche-filled tripe from Hayden and Michael Mukasey in today's Wall St. Journal, and this from an anonymous, cowardly "top Bush official" smearing Obama while being allowed to hide behind the Jay Bybee of journalism, Politico's Mike Allen.

But
Obama knowingly infuriated the CIA, including many of his own top
intelligence advisers; purposely subjected himself to widespread
attacks from the Right that he was giving Al Qaeda our "playbook"; and
he released to the world documents that conclusively prove how that the
U.S. Government, at the highest levels, purported to legalize torture
and committed blatant war crimes. There's just no denying that those
actions are praiseworthy. I understand the argument that Obama only
did what the law requires. That is absolutely true. We're so trained
to meekly accept that our Government has the right to do whatever it
wants in secret -- we accept that it's best that most things be kept
from us -- that we forget that a core premise of our government is
transparency; that the law permits secrecy only in the narrowest of
cases; and that it's certainly not legal to suppress evidence of
government criminality on the grounds that it is classified.

Still,
as a matter of political reality, Obama had to incur significant wrath
from powerful factions by releasing these memos, and he did
that. That's an extremely unusual act for a politician, especially a
President, and it deserves praise. None of this mitigates any of the
bad acts Obama has engaged in recently -- particularly his ongoing
efforts to shield Bush crimes from judicial review by relying on
extreme assertions of presidential secrecy powers -- but, standing
alone, his actions yesterday are quite significant.

As is obvious
from everything I've written over the past three years, I think the
need to criminally prosecute those who authorized and ordered torture
(as well as illegal surveillance) is absolute and non-negotiable (and,
as I wrote earlier today, in the case of torture, criminal investigations are legally compelled).
A collective refusal to prosecute the grotesque war crimes that we know
our Government committed is to indict all of us in those crimes, to
make us complict in their commission.

Criticisms directed at
Obama and Holder for advocating immunity for CIA officials who
relied in "good faith" on DOJ memos (a mere subset of the government
criminals) is absolutely warranted. But, it is not Obama's sole
responsibility -- or even his decision -- to prosecute. As a strictly
legal matter, that is a decision for the Attorney General,
independently, to make; it is Eric Holder who has the obligation to
enforce the law, independent of anything Obama wants or says and
regardless of what public opinion demands.

But more crucially, it is also
the responsibility of the citizenry to demand that this happen. What
Obama did yesterday -- whether by design or not -- provided the most
potent tools yet to create the political pressure for prosecutions. As
Kevin Drum makes clear, no decent human being reading those memos would be anything other than repelled by what was in them. Polls already found that large percentages of Americans, majorities even,
favor investigations and/or prosecutions for Bush crimes. The onus is
on those who believe in the rule of law to find ways to force the
government to criminally investigate whether they want to or not (this petition
demanding that Holder appoint a Special Prosecutor is a very good place
to begin, though it will require much more than just petitions).

The
most criticism-worthy act that Obama engaged in yesterday was to affirm
and perpetuate what is the single most-destructive premise in our
political culture: namely, that when high government officials get
caught committing serious crimes, the responsible and constructive
thing to do is demand immunity for them, while only those who are
vindictive and divisive want political leaders to be held accountable
for their crimes. This is what Obama said in affirming that rotted premise:

This
is a time for reflection, not retribution. . . . But at a time of great
challenges and disturbing disunity, nothing will be gained by spending
our time and energy laying blame for the past. Our national greatness
is embedded in America's ability to right its course in concert with
our core values, and to move forward with confidence. That is why we
must resist the forces that divide us, and instead come together on
behalf of our common future.

That passage, more
than anything else, is the mindset that has destroyed the rule of law
in the U.S. and spawned massive criminality in our elite class.
Accountability for crimes committed by political leaders (as opposed
to ordinary Americans) is scorned as "retribution" and "laying blame
for the past." Those who believe that the rule of law should be
applied to the powerful as well as to ordinary citizens are demonized
as the "forces that divide us." The bottomless corruption of
immunizing political elites for serious crimes is glorified in the most
Orwellian terms as "a time for reflection," "moving forward,"
and "coming together on behalf of our common future."

Regardless
of the reasons, it is clear that Obama will not single-handedly
eliminate the immunity from the rule of law which the political class
and other elites have arrogated unto themselves. If anything, as his
comments yesterday reflect, he is likely to affirm and defend that
immunity (and, obviously, he personally benefits from its ongoing
vitality). Demanding that political leaders be subjected to the rule
of law -- and finding ways to force the appointment of a
Special Prosecutor -- is what citizens ought to be doing. Either we
care about the rule of law or we don't -- and if we do, we'll find the
ways to demand its application to the politically powerful criminals
who broke multiple laws over the last eight years. Obama's release of
those torture memos yesterday makes that choice unambiguously clear and
enables the right to choice to be made.